JURIST - Paper Chase: Katrina response has US lawmakers reconsidering Posse Comitatus Act

[JURIST] With Washington reeling from criticism about its response to Hurricane Katrina [JURIST news archive], lawmakers are again considering relaxation of the Posse Comitatus Act of 1878 [Wikipedia backgrounder; text of 18 US Code s. 1385], which generally prohibits federal soldiers or National Guard troops under federal control from operating in a law enforcement capacity on US soil. Approximately 19,000 active-duty soldiers and 45,000 National Guard soldiers - the latter currently under the control of Louisiana Governor Katheleen Blanco - are now involved in relief efforts. Military and civic officials have thusfar been at pains to stress that their involvement in recovery work and even the National Guard's law enforcement role [JURIST report] does not amount to any sort of martial law.

Gen. Peter Pace [official profile], expected to become chairman of the Joint Chiefs of Staff later this year, has called for Posse Comitatus to be reconsidered in response to suggestions that it slowed down deployment of troops, but has not specifically endorsed a relaxation. Sen. John Warner (R-VA) [official website], chairman of the Senate Armed Services Committee [official website], has questioned restrictions under the law since the September 11th attacks, and has promised to do so again. Earlier this summer, new Department of Defense contingency plans for response to terrorist attacks also raised questions about the act [JURIST report] and domestic deployment of federal troops. Legal scholars, however, have questioned any relaxation of the statute, noting that in earlier disasters "Congress and the public have seen the military as a panacea for domestic problems", and "minor exceptions to the PCA can quickly expand to become major exceptions" [75 Washington University Law Quarterly 953; full text].

The Rand Corporation offers an overview of the Posse Comitatus Act [PDF], LLRX offers a print-oriented resource guide, and the conservative Cato Institute hosted a debate [recorded video] on the Act's current applicability in 2002. Also in 2002, JURIST ran an op-ed on the subject in the context of military support in the search for the DC sniper [JURIST essay]. Reuters has more.

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